August 10

The reserve power to dismiss: a wasting asset?

 

 

The exercise of one of the reserve powers of the Crown, the power to dismiss a prime minister or premier, or more accurately withdraw their commission, will always be controversial.  

The crisis in 1975, which Sir David Smith rightly categorises as a political and not a constitutional crisis, was the product of two politicians unwilling to compromise.  

The Prime Minister, Gough Whitlam had in opposition asserted that any prime minister refused supply by the Senate should resign.  As Sir David has meticulously detailed, Mr Whitlam and his party had frequently tried to persuade the minority parties to refuse supply and thus bring down a government.

So had he done in 1975 what he had preached consistently in his years in opposition, there would have been no crisis.  And had the then Leader of the Opposition, Mr. Fraser waited until the next election, he would have enjoyed a victory untainted by accusations that he had behaved shamefully.

…the Governor-General acts…


Their actions forced Sir John Kerr to act. The extraordinary aspect of 1975 was that both politicians tried to shift the blame for their own acts on to the Crown. Mr Whitlam did so immediately; Mr. Fraser did so later when he converted to republicanism.

Many in the media joined them in their attempts to rewrite history. It is little wonder, then, that a Canadian constitutional scholar has asked whether the Crown could easily absorb another such crisis, “however justifiable the Governor’s decisions might be from a purely legal point of view”.  Could this imperil the future exercise of this reserve power?  Is it a wasting asset? 

 
Perhaps there is a solution which is consistent with the Westminster system. Such a solution might lie in allowing a “recall” election.

(Continued below)

…recall election…

 

This is typically a three stage process, with the final two stages taken simultaneously.  The first stage is a petition for a recall election in an electorate signed within a prescribed time by a minimum percentage of electors, as low as 3% and as high as say, 12%.  

This is followed by a vote open to all electors to determine whether an election should be held. For convenience a ballot for the election is held at the same time, although this could subsequently be found to have been unnecessary.  

The recall election has been adapted to a Westminster parliamentary system, that of the Canadian province, British Columbia. In practice, successful recall elections are rare, but it is arguable that if this mechanism had been available in Australia in 1975, the opposition would have concentrated on investigating its availability rather than in refusing supply.

The legitimacy of its use, successful or not, would be difficult to challenge. This is in no way a proposal to remove, amend, codify or reduce the reserve power to withdraw the prime minister’s or premier’s commission. This power would still exist and would remain available for use against an errant head prime minister or premier. 

 The attraction of the recall election is that it is not inconsistent with the Burkian concept that democracy under the Westminster system is not direct but representative. Edmund Burke expressed this principle succinctly:  “Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it you your opinion.”    

This proposal for  a provision for recall elections may thus be distinguished from other proposals  for direct democracy and which involve initiatives by the citizenry, usually known as CIR’s , Citizen Initiated Referenda.  As these are intended to have direct legislative effect, they arguably involve an exception to the Burkian principle.

But that may well have been compromised already through  the advent of the powerful parties and factions which substitute their opinion for th eindividual MP. 

 ( This is a slighltly amended version of the originally published on   13 August 2007 and also suggested in Her Majesty at 80: Impeccable Service in an Indisoensable Office, 2006 )

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